77 On legality and morality

Imagine a lawless world full of thievery, exploitative land-owners, murderers, priests indulged in paedophilia, and merchants who habitually engage slaves. A group of people decide one day to sit down and collect a set of rules which their king would enforce and by which every citizen will soon be wont to live. It is not unreasonable to think that these people might outlaw killing, thieving and slavery, and they might limit the powers of landowners and return power to labourers, and they might recommend punishing paedophilia with severity; they might even set out rules of employment for merchants seeking deckhands. These would be known as the laws of the land.

Where were these laws derived from? The ideas founding them must already have been part of society at this point: that killing and thievery is bad, that fairness is good, that respect for others’ property and life is good and so on. In other words, these laws were born out of morals.

I. A brief history of morality

While most religions take credit for introducing morality into society, morals certainly existed long before religions¹. A theory known as MAC—for ‘Morality As Co-operation’—explains morality as a tool that was developed organically over time for fostering co-operation within civilisations.

The MAC theory, developed by Oliver Scott Curry and colleagues², suggests that “morality is fundamentally an evolved solution to problems of social co-operation”. The theory explains morality cross-culturally using controlled and operationalised comparison.

According to MAC there are seven moral rules present across culture: love your family, help your group, return favours, be brave, defer to your superiors, be fair, and respect others’ property. These are unequivocally universal. Their analysis of 600 ethnographic accounts of ethics from sixty societies showed that these seven rules were always considered “morally good”.

The same study not only found examples of these morals in most societies but also found that there existed absolutely no counter-examples to these moral codes. That is to say, no societies existed in which these behaviours were considered morally bad. No society considered loving one’s family bad, helping one’s group bad etc. The moral basis of all societies, therefore, was identical; there was, for example, no East/West divide in civilisation in these terms.

Now, if a group of people in a lawless land sat down to frame a set of rules for the betterment of their peoples, they would naturally look to what is morally right and enforceable to come up with those rules. After all, no law would say thieving is allowed in a society that unanimously agrees that thieving is bad. With this alone we have found an interesting way of looking at legality and morality: the law is a subset of morality, encompassing morals that are universally enforceable. Legality codifies select morality.

However, this seemingly convincing perspective actually introduces a critical logical problem: how can something be the subset of something else and also hold an opposing stance to it? After all, legality cannot both be a subset of morality and ever oppose it in any capacity. That would mean morality is self-contradictory. Perhaps there is greater nuance to this relationship than one that can be taken simply at face value.

II. Legality and morality do not each imply the other

We have established so far that morality is a fundamental construct of a society, born out of common sense and the co-operational needs favouring the sustenance of that society. We have also established that legality cannot be simplistically described as a subset of morality. We are now therefore in a position to examine whether there exists a positive relationship between legality and morality i.e. does the legality of something imply its morality and vice versa.

Whatever is legal need not be moral. This is the first corollary. You could have something codified as licit in a country’s legal system but that need not qualify morally. This is a classic example that breaks down the idea that legalities are somehow carved out of selective moralities.

Consider for example the idea of a bank foreclosing a mortgage. The mortgagor may have failed to make payments due to ill health, calamities or a simply a series of unfortunate events that might bring anyone to their knees. To anyone knowing all this, choosing to take away that person’s home would sound cruel; it would, more specifically, be morally unjust. Yet a bank is perfectly within its legal rights to foreclose the person’s house for failing to repay what is due.

Take as a second example the recent layoffs at several tech firms. Particularly, when Google decided out of the blue to sack a woman who was on maternity leave at 4:30 am, it drew curses out of everyone. “While on maternity leave feeding my 3 week old daughter at 4:30AM last Friday,” wrote the woman on her LinkedIn, “I learned (sic) that my position at Google had been eliminated.”

There is no doubt that the company’s decision to sack her and its other employees the way it did was inconsiderate, but was it illegal? There are no laws against it.

Legal standards are often external. They are imposed on society and are set to prevent someone from gaming the system as moralities cannot prevent this, with good reason³. Moral standards, on the other hand, are internal. They are what we believe personally or as a closed group.

Going by our statement above one might be tempted to write the counter corollary as “whatever is moral need not be legal”. This is in line with our first example where we saw how legality could sometimes be seen as a subset of morality.

However, you could take step aside and see this from a different angle too. To write down our next corollary we understand that, as we saw just now, there exist legalities that could be immoral so could there exist some illegalities that are nonetheless moral, i.e. our next corollary is, whatever is illegal need not be immoral.

Say you are walking down the street back home at midnight. The street is deserted and you approach an intersection where the pedestrian light glows red. You look up and down the street and, convinced that no vehicle is in sight or sound, you cross the street anyway and continue on your way home. Or you could cross half-a-block down the street away from the intersection too.

In either case, what you did is illegal. Whether you deliberately ignored the red light or jaywalked, you did something that in a court of law would be considered illegal. But was either action immoral?

A law exists to prevent someone from skirting what is generally acceptable in society. When something is accepted by the majority and then codified into a law, it rarely faces backlash. Public discourse comes into the picture when a law is at odds with the majority. It becomes a ruckus when the public is evenly split on the issue.

Things may be immoral but the law need not have anything to say about it at all. Think of a parent cutting their child out of their will. Society may criticise the parent as being immoral—especially if their reason for cutting their child out is flimsy—but the law does not have an opinion on it.

On the other hand, with things such as jaywalking, some may go so far as to say that it would not even qualify as a moral issue. It is a legal issue no doubt and by ensuring that no accidents were caused and nobody was inconvenienced (which is why the jaywalking law was put in place) you ensured that the spirit of the law was upheld even when you chose to break the letter of the law. But is there even a moral ground to all this?

This brings us to a key differentiator between legality and morality. Legality is binary; morality has shades of grey. Everything is either legal or illegal. But not everything is either moral or immoral. Some things are moral, some are immoral, some are more moral than not while others are immoral under specific conditions, and still other things barely qualify within the realm of morality—like jaywalking. Further, in much the same way as how morality does not always address everything, so is the case with legality. What they both have in common then is that there are issues neither addresses.

To summarise—morality predates legality (and religion); legality is sometimes a subset of morality, never the other way round; all that is legal need not be moral; all that is illegal need not be immoral; legality is binary and morality is a continuous space; and there are issues in society and everyday life that either fall outside the purview of both or are simply addressed by neither.

III. The importance of public discourse

A most pertinent question we now face is, what happens when society is faced with an issue over which it is split on moral grounds?

As a society we have the habit of getting uncomfortable when faced with issues of complex morality. Consider, for example, the case of illegal immigrant children crossing between China and Hong Kong in the late ’90s. The Migration News reported in April of 1999 thusly—

In January 1999, Hong Kong’s highest court ruled that the estimated 350,000 mainland Chinese children with one Hong Kong parent, including those who were born out of wedlock in mainland China, have the constitutional right to live in Hong Kong. There were fears of a mass migration into Hong Kong, and the Chinese government’s Bureau of Entry and Exit Administration announced that, despite the ruling, it would not process the applications of illegitimate children with a Hong Kong parent to move to Hong Kong.

The situation in Hong Kong was morally complex and mainland China had its own interests. Within Hong Kong, the influx of child illegal immigrants (or IIs as they were known) caused some debate. People were conflicted about how truthful these immigrants would be. Hong Kong, unlike mainland China, offered fixed monthly social security benefits to qualifying citizens. Would the IIs exploit this money to their advantage and try to live off their monthly social security?

There used to be a popular radio show in Hong Kong called Teacup in a Storm⁴ where the would public call in to discuss their grievances with the government. The issue of child immigrants was discussed in one episode that brought out a troubling relationship between morality and legality in public discourse.

Sit back and read this exchange between the caller, one Mr Chan, and the host of the radio show, Mr Cheng. This aired on 10 July 1997⁵.

Chan (caller): Those child IIs should be repatriated no matter what rights they might have. For otherwise Hong Kong will be flooded by them … Their parents won’t work after the child IIs come to Hong Kong. They’ll have to live on social security benefits… For example, the father of a five-person family will quit his job after getting a social security benefit of $9000 per month from the government.

Cheng (presenter): Mr Chan, I can’t say I agree with what you say, but I can see how you feel. It really is a serious problem. But we are not discussing this (i.e. distribution of social resources), we are discussing the law, the Basic Law, our rights…

Chan (caller): I am not saying that they should never be allowed to come but they must apply and come legally.

Cheng (presenter): If that’s what you mean, then you are contradicting yourself again. Mr Chan you just said these people come to live on social security benefits and do not work. What difference would it make if they come legally or not?

Chan (caller): You are wrong. It is different if they come legally!

Cheng (presenter): You are saying you won’ t mind if they take $9000 social security benefits and quit working provided that they come to Hong Kong legally.

Chan (caller): You are right.

Cheng (presenter): I don’t agree. You are too generous. I would say they must work. There is no way that we should provide them with social security benefits if they don’t work.

It is understandable if you feel like you want to go back and re-read that conversation, but let me save your time: the two speakers effectively switched their stances over this short exchange.

In the beginning, the caller’s grievance was that IIs would enter Hong Kong skirting the law and then live off of social security, never finding themselves any work to do.

The host opposed this saying that social security benefits are not part of the discussion, and that he just wants to talk about the law which now allows children with one Hongkonger parent to enter and live in Hong Kong.

The caller then says he has no problem if they come in legally and then live on social security anyway, to which the host points out that it makes no difference whether people immigrate legally or illegally if the caller’s grievance is misuse of social security.

By the end we have the host defending that social security must not be misused (which was the caller’s original issue) and the caller defending that social security can be misused if people immigrate legally (the host’s original issue).

The last part of that is what concerns us: is it morally correct to allow social security misuse? Clearly, it is not. Social security is meant for those who really deserve it and no country has bottomless coffers. Why then do we have a person arguing passionately in favour of social security misuse?

This is a classic case of the complexity of morals. When faced with just one question (‘Should people enter illegally?’) the debate was clear and people had their stance. The legality was crisp on this issue as well. When faced with added subtleties of morality (‘What if people enter legally and misuse social security anyway?’) people’s natural response is not to pause, consider and discuss the various grey areas of morality. Instead, they seek to immediately take cover behind legality.

This is a common habit in public discourse. When discussions of morality become complex, people resort to legality to explain themselves. When questions of morality become tough to discuss or dissect, people often use legality as a cover. But why legality? Because legality has consequences. Skirting morals will draw frowns but skirting the law will draw fines and prison time. So it is better to seek shelter behind the latter when the former turns out to be a tough discussion to have.

For our radio conversation above, rather than further discussing the complexities of social security dissemination after legal migration, our speakers were happy to conclude with, “Well, if the law allows it, that’s what we should do.” But what if immoral acts follow? “I don’t care, so long as the law isn’t broken.”

Similarly, consider our initial example of a bank foreclosing a mortgage. We saw how, under certain circumstances, the bank’s action could be viewed as legal but immoral. Along the same lines, if the borrower was someone who habitually gambled away all his earnings, most people would say he had it coming when the bank foreclosed. However, these are morally unambiguous situations. Now what if you lent someone money and after a reasonable period they never paid you back a penny? Your natural response would be to turn to the courts to get what is your due. Banks foreclose when they find themselves in a similar situation—albeit before they go bankrupt—which really means the bank is simply seeking what is due to it anyway. The parties then do not sit at a table and discuss the complex morals of lending, borrowing, forgiving debts and getting back one’s belongings; they rush to a court of law.

This is a direct consequence of legality being binary. It is simpler, more straightforward by design. Morality is more complex, nuanced and calls for longer, more heated debate.

IV. On abortion

Today, a popular but incorrect use of the morality v legality debate occurs around the issue of abortion. Where one side speaks of the law staying away from one’s body, the other speaks in favour of a life form contained within that body. These are two people attempting to fight each other on two different battlefields, which is why this debate often never gets anywhere.

The first step therefore is to differentiate between what the ‘correct’ morals are what the legal rights are that we wish to protect. These are not one and the same.

A woman may have the legal right to abort but her decision to abort can be driven by immorality. This is not an issue legality is designed to address until such a time as we can reliably read minds. It would border on policing in the style of Minority Report, so we shall toss this possibility aside for its futility and, like justice in general, work with the assumption that someone is innocent until proven guilty (of immorality in this case).

If your relative was diagnosed with a critical form cancer that could be saved with a bone marrow transplant and your bone marrow was the only match they could find, you are morally obliged to give it, but are you legally required to do so?

If you found a person drowning in a riptide by the shore and you were the only person for miles, you would be morally obligated to at least try to save that person. But everyone knows that stepping into a riptide could mean near-certain death. You are still morally obligated to try but are you legally required to jump into the water to save them?

In both of these cases we see a common thread: there is a person whose life is at stake, a person who can choose to save them potentially at the cost of their own life, but no legal obligation exists whatsoever.

The so-called “pro-life” activists⁶ are perfectly fine with this gross mismatch of morality and legality. They are also completely understanding of a person who chooses not to donate their bone marrow or risk their life by jumping into the sea, in both cases to save fully alive, fully formed, fully grown humans. The same people have no qualms demanding that a woman put her life at risk, her welfare at risk, to promote the life and welfare of a biological entity that will potentially become a human in time.

There is a second inconsistency in this argument. Laws are written for things that exist now, not for things that can potentially exist in the future. Morals too govern the here and now, not the potential.

All priests are potential paedophiles. Should they be governed by paedophilic laws from day one? Should they be morally restricted like a paedophile from the get go? Or, to use the same characters in a milder example, all seminarians are potential priests, so why are they not held to the same higher moral standard as priests? This is because morality and legality both apply to what is and not what will be. The application of morality and legality in this case is therefore fundamentally flawed.

The “pro-choice” arguments are at times similarly weak. To argue that a foetus does not have the desire to live or a sense of self that it would lose upon abortion are both specifically designed to make a case for abortion. While not incorrect, such arguments are fundamentally weak. However, the strength the “pro-choice” movement lies in the fact that the morality of the foetus does not change after foetal viability, which means that the “pro-life” argument is working against itself even in the absence of the “pro-choice” movement.

With time it is clear that the possibility of abortion drops and the closeness of the foetus to an independent human being increases and neither side seems to be arguing for abortion at the end of the third trimester.

The trouble with both the “pro-choice” and “pro-life” arguments is that they are not firmly seated in either morality or legality, choosing instead to define themselves within the confines of their own existence. The “pro-choice” arguments require defining morals around those features of a foetus that differ from a fully formed human while the “pro-life” arguments require defining morals based on potentiality.

Further, “pro-life” arguments are circumstantial. Most “pro-life” individuals care more about an unborn foetus than they ever will about that same foetus once it reaches motherhood and becomes pregnant under circumstances that are less than ideal. This is a failure to recognise morality. The same “pro-life” individuals are oblivious to the needs and troubles of, and expectations from a woman in early pregnancy. This is a failure to recognise morality. The “pro-life” argument, like a well-designed advertisement for a cigarette company, sounds great but is severely hypocritical.

As the professor of philosophy, Dr Gerald Dworkin, of the University of Illinois says rather cleverly, “An acorn is not an oak. A caterpillar is not a butterfly. A two-cell zygote is not a human being. It is not a human being, for one reason, because it is not (yet) a human being. At the moment of conception one cannot know how many humans will develop from that mass of cells … Therefore the earliest point at which it is biologically plausible to classify the product of conception as a human being is the point at which the number of embryos is determined … Present evidence indicates that this occurs sometime between the sixth and ninth month of gestation.”

The “pro-life” argument requires an unscientific re-definition of our world and a stretching of our morals beyond reason to encompass things that may exist in the future. It calls for a discounting of humans that exist now, denying them morals, asking them to pay a price for embracing morality for humans that could potentially exist in the future.

There also exist cases such as those with frozen embryos (a lot more of which get discarded than turned into humans) or the natural process of spontaneous abortion. Hardly any “pro-life” group has donated or otherwise contributed towards the development of science that can help prevent this. Indeed there is argument within the “pro-life” movement about this issue which by their own definition is morally unambiguous. Some argue that they should work on it (although few have) while others insist that nothing can currently be done about it. The same nihilism does not extend in their courtesy towards a newly-impregnated woman, unfortunately.

The “pro-choice” argument on the other hand has as its strength the simple idea that since proper morality can only be applied on the existent human—the potential child-bearer in this case—it should be applied to the woman.

Lastly, and least important, the slogan to ‘keep your laws off my body’ (or equivalent) is futile because a law is certainly needed here. A law is needed to protect the woman and ensure that the choice remains hers. Without that law, the “pro-life” agenda is indirectly empowered to lay their hands on the woman. A debate is also definitely needed for this reason because that is how societies progress and offer legal protection to various classes of people under various circumstances.

At the start of this section I described what this debate is really about: “The first step … is to differentiate between what the ‘correct’ morals are and what the legal rights are that we wish to protect.” We have, above, eschewed the idea of deciding based solely on morality about this issue with considerable examination. Therefore, in terms of the law, since the woman is the one being asked to risk her life with immediate effect, and she definitely exists now, it is she whose morality ought to be protected by legalese. A law must be made give her choice and ensure it remains hers alone within reason⁷.

V. Evolving spheres

Legality and morality are not set in stone. As society evolves, so do they; and debates that involve them will rage on as they always have. As Spinoza writes in his magnum opus Ethics, “No matter how thin you slice it, there will always be two sides.”

What law and morality do is provide a common societal structure to what is acceptable and what is not. Exclusivity in either would be incorrect because—as we discussed before—neither legality nor morality address everything. There are things beyond the realm of morals, things beyond the address of laws, and things that have not yet come into existence that cannot reasonably be expected to be discussed by either.

However, as time passes and societies evolve, public discourse enables rewriting and modifying what is accepted as morally right and legally allowable. And all this continues to be based on the fundamental ideas that are as true today as they were millennia ago: to enable our co-operation as a society and continued existence as a species.

Nobody in the ’80s or ’90s would have expected that the year 2000 would see same-sex marriage legalised in some corner of the world⁸ yet today we view marital discrimination based on homosexuality as morally corrupt. Nobody in the 1800s would have expected that privacy as fundamental human right would be codified in several countries worldwide yet today we have laws that ensure an individual’s right to privacy quite effectively. Nobody thought smoking cigarettes was bad in the ’70s yet today smoking in a room full of children will see you getting hushed out into the open. Morality and legality have both evolved to account for our evolving societies and they will continue to do so for generations to come.

In short, legality evolves to address changing morals and technologies; and morality evolves to form opinions on changing societies. So long as public discourse encourages legality to evolve and adapt based on morality, debates around them will rage on and we can remain convinced that we as a civilisation are on the right track.